Thursday, 28 July 2016

The tumultuous result of the recent EU
referendum has seismic implications for the United Kingdom, its constituent
parts and of course the European Union itself.

The nature of the future relationship between
the UK and the EU, the question of Scottish independence and membership of the
EU, increasing calls for unifying Ireland, the risk of Eurosceptic contagion
affecting the rest of the EU and the nature, scope and focus of the new 27
member bloc EU are all huge existential questions, the implications of which
will reverberate for years to come.

The more immediate legal question to address,
and one that has been largely side-lined by the bigger picture problems, is
that of the actual process of extricating the UK from the EU legal system.

The process for withdrawal is not without
uncertainty. The new process for withdrawal is set out in article 50 of the
Treaty on European Union and has only been in force since 2009, when the Treaty
of Lisbon came into force. Thus, the process is nascent, without legal
precedent and ambiguous.

At this juncture, it is important to set out
the historical development of the withdrawal clause.

In the negotiations
to create a Constitution for Europe, it was clear that the drafters of the
constitution wanted a clear voluntary withdrawal clause, as set out in Article
I-60. This was in stark contrast to the previous European Community orthodoxy,
namely that withdrawal was politically, legally and practically impossible and
as such, the previous treaties did not include a withdrawal clause. Indeed, the
main impetus for refusing to acknowledge the possibility of withdrawal, was to
effectively ignore any criticism of the drive towards 'an ever closer union' of
the Peoples of Europe: see Athanassiou, Edward
and Douglas-Scott.
The thinking was that to even contemplate the unilateral secession of a member
State was to risk this existential danger coming to fruition: the irony is that
such thinking may now be forthright in the minds of prominent Bremainers.

Intervening realpolitik crises, such as the
Irish rejection of the Treaty of Nice, led to increasing recognition, albeit
reluctantly, by the European Community of the growing discontent across
European member states with European Union integration. Such acceptance of the
emerging reality necessitated the insertion of an exit clause into the proposed
Constitution. After the rejection of the Constitution, the withdrawal clause,
and indeed most of the major terms of the Constitution itself, were retained in
the draft text of the Treaty of European Union proposed at the Inter-Governmental
Conference, convened in Lisbon, in 2007.

With the coming into force of the Lisbon
Treaty in 2009, the withdrawal clause of Article 50 TEU is now the de facto and
de jure process for any member State wishing to exit the new European Union
supranational organisation.

However, this has not prevented many
hard-line Brexiters claiming
that Article 50 is not the only mechanism for extrication. The Vote Leave
Roadmap considers that there are three main options for withdrawal. The first
method suggested is use of the Article 48 TEU process for changing the treaties
of the EU. The second suggestion is the Article 50 TEU process and the final
suggestion was to rely on general public international law, specifically
article 54 of the Vienna Convention of the Law of Treaties 1969. A fourth
possibility also tentatively mooted, is for the UK to simply repeal the
European Communities Act 1972 and replace it with new UK law.

The Options
- Article 48 TEU

In terms of recourse to the article 48 TEU
process, this looks highly improbable (see Armstrong’s analysis).
This process is relied upon by Vote Leave as an historical precedent, in
relation to Greenland's extrication from the European Economic Community. There
are a number of objections to the appropriateness of this mechanism. First, the
situation of Greenland in the early 1980s is not analogous to the current
situation. Greenland was not a member State of the EEC, it was a constituent
country within the Danish Realm, that is it was a semi-autonomous part of the
Kingdom of Denmark. After increased self-rule under after the 1979 referendum
gave Greenland more autonomy akin to home rule, the Greenland government sought
to remove itself from the EEC. Denmark, as the member State of the EEC and
desiring to give effect to Greenland's democratic wishes, commenced the process
of seeking change to the EEC Treaty in 1982. After a few years of negotiations,
EEC law ceased to apply to Greenland by virtue of EEC law: an amendment
to the Treaties Thus, the withdrawal of Greenland from the EEC and its laws did
not relate to a member State, it only related to the geographical scope of EEC
law and the question of access to the EEC single market for Greenland's fish
and fish products. Further, after the decision was taken, because Greenland
still retained strong legal, political and economic connections with the EEC
member State Denmark, Greenland was able to forge itself an EEC identity
itself: that of an Associated Overseas Country or Territory.

It will be difficult to argue that the option
of gaining Associated Territory is available for either the United Kingdom,
since it is a sovereign country that has decided to leave the European Union,
or for Scotland, Northern Ireland, London and Gibraltar, as areas of the UK (or
as a British Overseas Territory) desirous to remain. Nevertheless, some have suggested
that Scotland should consider the option of gaining associated status for the
devolved regions of the UK that voted to stay in the EU: the reverse Greenland
option. In this latter scenario, the rest of the UK would leave the EU, and the
devolved regions of the UK which voted to stay would retain favourable access
to the EU internal market as Associated Territories. Such a position would be
without precedent, since all Associated Overseas Countries and Territories
under EU law retain significant links to a member State of the EU and are all
geographically distant from the EU. Nevertheless, the mere fact that this
option is being discussed highlights the unique constitutional challenges
facing the UK and the EU post-Brexit.

Brexit relates to a member State of the EU voluntarily
leaving: something which has no legal or political precedent. From a political
perspective, the article 48 TEU process is unappealing to the Brexiters. The
process requires the unanimous consent of the governments of the member States
and for that decision to be ratified by those member States according to their
constitutional arrangements. Thus, there is a danger of the use of a veto by
any one of the 27 member States to stymie the process at the EU level and
thereafter a risk of a domestic constitutional ratification process of any of
the 27 member States delaying or frustrating the process of UK withdrawal.
Thus, an ordered, seamless and swift transition of the UK from EU member State
to non-EU member State would not be the product of Article 48 TEU. Further,
article 48 TEU is now not the only process for dealing with the geographical
scope and reach of EU law. Indeed, there is a more specific and more
appropriate process under EU law: the Article 50 withdrawal system.

The Article 50 TEU process is more
appropriate for a number of reasons. It is the lex specialis for withdrawal of
a member State from the EU, whilst Article 48 TEU is the lex generalis for
significant changes to any aspect of EU law, including withdrawal of an EU
member State. On that legal ground alone, Article 50 should be the most
appropriate mechanism. Further, this process only requires a qualified majority
decision by the 27 member States, not unanimity and does not require to be
ratified by the member States according to their constitutional requirements.
Thus, the withdrawal process should be simpler and more streamlined than that
of Article 48 TEU. The implications of this process will be set out in a later
section.

The Options
- Article 54 of the Vienna Convention

It has also been argued that article 54 of
the Vienna
Convention on the Law of Treaties 1969 applies to the process of UK
withdrawal from the EU. Article 54 of the Vienna Convention simply provides
that the withdrawal of a party from an international treaty can take place
according to two conditions, namely either in conformity with the terms of the
Treaty or at any time by consent of all the parties after consulting the rest
of the State parties.

Again, like the Greenland situation outlined
above, the appropriateness of this mechanism has been severely diminished by
the passage of time. The EU now has an explicit withdrawal mechanism (article 50
TEU) and a consultative mechanism for changing the EU Treaties (article 48
TEU). Thus, reliance on the general terms of public international law set out
in the 1969 convention would appear incongruous in light of the existence of an
explicit process for withdrawal. And indeed, recourse to the article 50 TEU procedure
itself would be entirely consistent with the underlying principle behind
article 54 of the Vienna Convention, that is withdrawal from a Treaty should
take place in conformity with the Treaty and in consultation with the States
Parties to the Treaty. Further, a reliance on general principles of
international law would fly in the face of the of the well-established legal
orthodoxy that confirms the autonomous sui generis nature of EU law. The EU is a new legal order,
and as such, amendments to its constitutional foundations must be undertaken
according to EU law itself (Defrenne).

The Options
- Simple Repeal of the 1972 Act

The other extreme scenario envisaged would be
to force through the UK parliament emergency legislation repealing and
replacing the European Communities Act 1972. Of course, the UK Parliament is supreme and
can enact and repeal any law it so wishes, including those of a constitutional
status such as the 1972 Act (see pars 207 of the HS2
judgment), but the legal and political implications of such a premature move
would be profoundly destabilising. Without any rules and laws setting out the
UK's trading relationship with the EU, premature express repeal of the 1972 Act
would create a dangerous legal vacuum, which would also be hugely destabilising
politically and economically, particularly as regards the ability of the UK to
trade bother within and outwith the European Economic Area.

The last forty three years have seen the UK's
laws increasingly adopt a pro-EU stance, using EU law terminology and
cross-referencing EU law and EU institutions throughout, in order to give
effect to EU law. Further, EU Regulations all have the directly applicable
force of law in the UK as well. There are widely divergent
views on how much UK law is directly (and indirectly) influenced by EU law,
ranging from 15% to 50%, but regardless of the divergence of views on this
point, it is an indisputable fact that EU law principles, rules and doctrines
have become intertwined and intermeshed with that of the law of the United
Kingdom, and its constituent parts of England, Wales, Northern Ireland and
Scotland such that, to simply attempt to wind the clock back to 1972 would be
highly reckless, difficult and an act of extreme folly. Such action would
seriously undermine the reputation of the UK as a modern, outward looking
nation state which implements, follows and gives effect to its international
law obligations in a spirit of mutual cooperation and respect.

To refuse to use the Article 50 TEU process
and to unilaterally refuse to comply with EU law from the date of the express
repeal of the 1972 Act, would cause major ramifications at the EU law and
international law level. Domestically, since Parliament is sovereign, there is
nothing legally to stop the UK Parliament simply repealing the 1972 Act.
However, At the EU law and international law levels, diplomatic, political and
legal cooperation between the UK, the rest of the EU and indeed international
organisations would become fractious, if not impossible, although legal action
undertaken by the European Commission or other European Union institutions
would be rendered otiose by the UK's lack of engagement with the organisation
itself.

The EU could suspend the UK's rights under EU
law under Article 7 TEU, but of course if the UK had already unilaterally removed
itself from the EU by way of the repeal of the 1972 Act, then a declaration
that the UK has been in violation of EU law and thereafter had its rights under
EU law suspended by the EU, would be of declaratory value only, from the point
of view of domestic law. Similarly, any action by the Commission or any other
EU institution at the European Court of Justice would be nugatory, from the
view of UK law, given the non-applicability of EU law within the UK legal
system, post-Brexit. However, at the EU level, non-compliance would have
serious legal implications, including state liability and at the international
level, would have important political and diplomatic ramifications.

At the UK level, express repeal of the 1972
Act could only be done through the full legislative procedure of the UK
Parliament. This would require Parliamentary consent. Therein lies the rub. The
majority of parliamentarians in the present UK Parliament are still in favour
of UK membership of the EU, notwithstanding the non-binding result of the
recent plebiscite, although the parliamentarians are quick to state their
political commitment to respect the wishes of the electorate. However, any
attempt to repeal the 1972 Act without invoking Article 50 TEU or without an
arrangement in place settling the relationship between the UK and the rest of
the EU, would threaten the political commitment to respect the referendum
outcome.

The domestic impediments coalesce around the
process for replacing the 1972 Act with an act that clarifies the relationship
between the UK and the rest of the EU and the domestic law that is potentially
in play.

The European Union Act
2011 was enacted by the UK Coalition Government and was designed, in part,
to 'make provision about Treaties relating to the European Union.' Primarily,
the Act was enacted in order to prevent Euro-creep, that is the perceived
increasing land-grab by the European Union, into more and more areas of member
State competence. Inadvertently, and according to the law of unintended
consequences, this Act may introduce significant complexity into the
post-Brexit world.

Section 2 of the European Union Act 2011
provides that any Treaty that amends or replaces the Treaty on European Union
or the Treaty on the Functioning of the European Union, can only be ratified if
a number of conditions are met. Those requirements are that Parliament must
receive a statement on the Treaty amendments, Parliament must approve the
Treaty by way of an Act if Parliament and there is a determination that either
there needs to be a referendum on the proposed Treaty or that the Treaty
changes are not such as to trigger the referendum requirement. These
requirements were clearly designed to only operate in the event that new
competences, new member States or significantly new institutional structures
were to be introduced into the European Union framework and that the UK
remained a member State of the EU. If any of these changes were proposed at the
EU level, then a referendum would have to take place.

However, it is at least arguable that the
terms of the 2011 Act could extend to the new EU treaties that will have to be
produced in order to expunge all references to the United Kingdom and all legal
effects thereto. The 2011 Act as it currently stands requires direct UK
Parliamentary input into proposed changes in EU law. This specific UK law is
also bolstered by the general terms of the Constitutional
Reform and Governance Act 2010, which requires that international treaties
can only be ratified by the UK after being put before the parliamentary
approval process, as set out under section 18.

The significance of the 2010 and 2011 acts
also extends to the general argument that is gaining traction in the immediate
aftermath of Brexit, that is the need for express
Parliamentary approval of any changes to the UK-EU relationship. It is
indeed true that foreign affairs, that is the power of the UK to ratify
international treaties and indeed the power to enter into (and extricate itself
from) international relations generally is widely undertaken to be an exercise
of the royal
prerogative. However, the royal prerogative is a diminishing executive
power, subject to ever more control and supervision by the legislative wing of
the state. The status quo pertaining to the exercise of the royal prerogative
is under attack on two fronts: replacement of the amorphous executive power
with a statutorily defined, controlled and exercised power and judicial and
democratic supervision of the remaining executive powers of prerogative. The
modern interpretation of the exercise of the royal prerogative is that Parliament
must be involved in conducting oversight of use of this archaic power.

It has been argued that at the very least,
Parliament must be in a position to acquiesce in the exercise of the royal
prerogative by the Prime Minister (or other Minister): see for example, Human
rights treaties in the English legal system, Bharat Malkani, Public Law 2011 (page
554). Indeed, Lord Oliver, in the International
Tin Council case, stated that (at 499F-500C):

“as a matter of the constitutional law of the
United Kingdom, the Royal Prerogative, whilst it embraces the making of
treaties does not extend to altering the law or conferring rights upon
individuals or depriving individuals of rights which they enjoy in domestic law
without the intervention of Parliament...”

Clearly this judicial pronouncement refers to
the traditional dualist view that international law obligations cannot become a
part of the law of the UK unless and until these rights are incorporated into
UK law by way of an Act of Parliament. However, the position of the UK
post-Brexit reveals the reverse problem: how to 'unincorporate' those
international rights guaranteed by EU law, to UK citizens within the UK and the
rest of the EU and EU citizens living and working within the UK?

It is submitted that the reverse also holds
true: altering the applicable EU law, 'de-conferring' individual EU law rights
and depriving EU citizens in the UK of their domestic law rights under UK law
must similarly be subject to the intervention of Parliament in order to be
legitimate and fully in accordance with the rule of law. Thus, any change to
the substantive terms of the 1972 Act, could only be done with the explicit
approval of the UK Parliament and could only be done after the terms of UK exit
have been agreed with the remainder of the EU.

The Article
50 TEU process

Following the discussion above, if it is
accepted that the Article 50 TEU process is indeed the most appropriate
mechanism for extricating the UK from the EU, the question of how to do so
under this system is no less complex legally than the other processes described
above.

Article 50 TEU only extends to just over 250
words. It is rather brief and ambiguous. It states that:

'Any Member State may decide to withdraw from
the Union in accordance with its own constitutional requirements.'

It then further provides in 15 words that:

'A Member State which decides to withdraw
shall notify the European Council of its intention.'

The first paragraph of Article 50 confirms
that the running order of events mirrors the structure of Article 50 TEU
itself: There must be an explicit, constitutionally sound decision of the UK to
leave the UK before a notification to the European Council can have legal
effect (see Mark Elliot’s analysis).

As stated earlier, an unequivocal, explicit
intention to leave may well require democratic reflection and input in some
form of Parliamentary acquiescence, as the repository of the sovereign will of
the people. Further, as has been explicitly stated by numerouscommentators,
a referendum is not legally binding under the UK's constitutional arrangements.
Thus, it is highly likely that such a decision to withdraw will not be
forthcoming in the next days and weeks.

This second paragraph of Article 50 is similarly
significant because upon receipt of the notification to withdraw, the two year
countdown to exit begins to run. It is clear since the weekend that neither
David Cameron nor Vote Leave politicians are in no rush to trigger the two year
countdown since there is a recognition that once the two year timeframe begins
to reduce, the UK's negotiating position on securing a good economic deal
between the UK and the rest of the EU becomes seriously weaker. The basis for
such a view is that after the two year time limit expires, the UK will exit the
EU, with or without a deal on its future relationship with the rest of EU:
Article 50 only requires a deal on the terms of withdrawal. Indeed, Article 50
further states that the withdrawal agreement only need take into account the
framework for its (the Member State's) future relationship with the Union. This
wording implies that if there is no corresponding future relationship agreement
already in place, the Member State concerned simply leaves the Union after the
two year period, absent such an agreement.

The European Union has clearly been shaken to
its core by the seismic Brexit decision. At its heart, the EU is torn between
two competing push and pull factors: the desire to act decisively and in a
spirt of unity and the requirement to ensure future relations with the UK
remain as close as possible. Thus, political statements from the continent have
vacillated from the cordial to the hostile, stemming from a desire to show the
EU as a unified political bloc that will do everything it can to preserve its
position and continued existence (and in so doing punish the UK in order to
prevent the collapse of the EU through further defection) and a desire to
maintain close diplomatic, political, legal and economic ties with a large
European national state (which is significantly in the interest of the European
Union).

The European Court of Justice is the arbiter
of EU law and has the final word on the interpretation and application of EU
law (see Article 19 TEU). As such, only
the ECJ can definitively pronounce on the meaning and application of Article 50
TEU.

This can be done through various mechanisms
applicable to the ECJ's jurisdiction. For example, if the European Council
pressed ahead with a withdrawal arrangement concerning the UK, and the UK
considered that a statement by the Prime Minister was not an express statement
triggering the Article 50 TEU process, then the legality of these European
Council measures could potentially be challenged under Article 263 TFEU.

On the opposite side of the spectrum, were
the European Council or the Commission to fail to act in furtherance of the
UK's intention to withdraw from the EU, perhaps on the basis that, for a
considerable time, the EU institutions were only engaged in informal negotiations
with the UK during the pre invocation stage of Article 50, then other Member
States and EU institutions could theoretically submit an action for failure to
act under Article 265 TFEU. Similarly, post invocation of Article 50, the
Commission and the European Council will be in unchartered territory and will
be engaged in detailed, complex negotiations with the UK and the other member
States of the EU. It is not inconceivable that the negotiations may stall or
reach an impasse, and that fact may well encourage other EU institutions or
member States to invoke Article 265 TFEU. The basic fact of slow progress in
reaching agreement could trigger such an action for failure to act, however a
more cynical view would be that the Commission or Council may have been minded
to procrastinate during negotiations, clear in the knowledge that the two year
deadline is imminent and that the UK will have a weaker hand the closer the
negotiations stretch out to the end of the two year deadline.

There is also a possibility that because of
the significant divergences in opinion on the legal situation pertaining to the
UK's withdrawal, member States in dispute with one another concerning the terms
of the UK's withdrawal from the EU, may agree to invoke the dispute mechanism
system set out in Article 273 TFEU. However, this procedure is rarely used.

There is also the suggestion that the UK
itself, by failing to trigger the Article 50 process in a timely fashion, could
be in breach of its good faith obligations under Article 4(3) of the Treaty on
European Union, which ultimately could lead to Article 258 proceedings in the
ECJ.

More significantly, as the process of
disentangling the UK from the EU progresses through the UK parliamentary
process, legal issues on the validity, application and the interpretation of EU
law may be raised in the domestic courts of the UK. In such circumstances,
domestic proceedings may be suspended and the EU law questions referred to the
ECJ for adjudication, as per the Article 267 TFEU preliminary ruling procedure.
It is also not inconceivable that domestic law issues may arise in the other
member States as a result of Brexit, for example Germany might be asked to
contribute more to the EU budget. In
this situation, Brexit-related Article 267 TEFU references may be submitted to
the ECJ from other Member States.

It is supremely ironic that the Leave
campaigners' wish to extricate the UK from the European Union may in part
depend on clarifications, pronouncements and adjudications emanating from their
nemesis, the meddling European Court of Justice.

As regards the domestic situation, there are
already legal actions being
submitted to the courts of the UK. It has been reported that an application
has been made to the Queen's Bench Division of the High Court, concerning the
legality of triggering Article 50 TEU without Parliamentary input.

Both of these reported
legal developments rest on the use of the royal prerogative to trigger
Article 50 TEU. In essence, the
argument turns on the triggering process of Article 50 TEU: does this need
Parliamentary input or is it sufficient to have the Prime Minister exercise her
royal prerogative?

Government lawyers argue
that the operation of Article 50 is clearly within the parameters of the royal
prerogative. Although factually and politically correct, it is not necessarily
legally correct. The argument that the royal prerogative does not fully
encompass withdrawal of the UK from the EU, rests on a number of issues
surrounding Brexit.

The classic strands of debate on the royal
prerogative are based on the works of AV Dicey and Blackstone (See United
Kingdom: The Royal Prerogative, T. Poole, Int J Constitutional Law (2010) 8(1): 146-155.doi: 10.1093/icon/mop038
and Activism or Democracy? Judicial Review of Prerogative Powers and Executive Action,
Banfield and Flynn, Parliam Aff (2015) 68 (1): 135-153. See
further, R (On The Application of Bancoult) v Secretary of State For Foreign
and Commonwealth Affairs, [2008] UKHL 61.) At its simplest, the conduct of foreign
affairs, as an exercise in diplomacy and international politics, is highly
dependent on policy, not law and as such is particularly suited to
determination by royal prerogative, notwithstanding current controversies over
its use (ie the Chilcot Inquiry).

As stated above, the direction of travel for
the UK as a modern 21st Century democratic nation is for the royal prerogative
to be steadily reduced over time, via the creation of new statutorily defined
and controlled executive powers and for extant royal prerogative powers to be
subject to increasing democratic and judicial control. It is this notion that
goes to the heart of the legal actions currently being contemplated.

Despite the ambiguity over the exercise of
the royal prerogative, it is clear that the royal prerogative cannot be used to
change UK statutes (R (On The Application of Bancoult) v Secretary of State For
Foreign and Commonwealth Affairs, [2008] UKHL 61, at para 44). Thus, the royal preogative
cannot be used to change the European Communities Act 1972: only a new Act of
Parliament can repeal and replace the 1972 Act. The controversy concerns how
this is to be done.

The view of Government lawyers would, in all
likelihood, be that the process would be as follows: the Prime Minister
triggers Article 50 TEU and Whitehall begins the negotiations with the EU and
its Member States. Both of these events are an exercise of the royal
prerogative. After this process has ended, Parliament is involved: draft Acts
of Parliament are created, setting out the mechanism for repeal of the 1972
Act, addressing the UK's relationship with the EU and creating powers for the
UK to conduct trade with the rest of the world. This view assumes an orderly,
timely and neat process and from that context, it is highly unrealistic. In
particular, the two year time limit for Article 50 negotiations is extremely
short and it is likely that the UK would desire to extend this timeframe,
particularly in the event that there had been scant pre-Article 50 informal
negotiations with the EU.

For the argument that the royal prerogative
is not appropriate for triggering Article 50 TEU, there are a number of points
that can be raised in support of this proposition.

First, the royal prerogative, in its classic
exposition, is mainly concerned with the making of
treaties. The unmaking of treaties is never really addressed in the textbooks
and in the journal articles. This omission is important for a number of
practical reasons.

First, the emphasis on making treaties is
entirely warranted and it is easy from this perspective to see why and to understand
how the prerogative works. When desiring to enter a treaty regime under
international law, it would be unwieldy and cumbersome for the relevant
Minister and civil servants to have to request Parliamentary approval every
time they wished to engage in international negotiations. Once negotiations at
the international plane have concluded, Parliament is involved through the
passing of legislation taking the UK into the treaty regime. Indeed, this is
exactly what happened in 1972: The UK negotiated the terms of its entry into
the EEC and the Treaty of Accession was signed on the 22nd of January 1972; Parliament
was given the opportunity to discuss the terms of the Treaty of Accession under
the Ponsonby rule and also debated the terms of the European Communities Bill,
which became the 1972 Act and the UK joined the EEC on the 1st of January 1973.
It is established UK practice that the United Kingdom Parliament will enact
domestic law giving effect to the terms of the international treaty in
readiness of ratification of the treaty.

During the course of the past month, three
main ways to trigger Article 50 TEU have been mooted. The first method suggested
is the classical method outlined above, namely the simple exercise
of the royal prerogative, exercised by the Prime Minister. The second
suggestion is that propounded by Nick
Barber, Tom Hickman and Jeff King. They suggest that the significance of
the decision to trigger Article 50 TEU, which will ultimately repeal the 1972
Act, requires an equal level of Parliamentary input and as such this can only
be provided through an act of Parliament authorising the Prime Minister to
trigger Article 50 TEU.

Adam
Tucker has suggested that there is a third way, namely the making of an
Order in Council under section 2(2) of the 1972 Act.

Each of these possibilities throws up immense
constitutional challenges. The third option, use of the Order in Council
mechanism under the 1972 Act, is controversial because the system envisaged
under section 2(2) was designed to allow the UK to pass secondary legislation,
in order to give effect to EU obligations and exercise EU Treaty rights.
Although it is true that the use of Article 50 TEU would come under an
expansive view of exercising EU law rights, it is more realistic to adopt a
narrower view of section 2(2) of the 1972 Act such that it can only relate to
positive EU law obligations, rights and duties and not the negative right to
extricate the UK from the entire EU edifice.

Of course the use of Article 50 TEU relates
to EU law, but it is the definitive step in releasing the UK from the EU and
thus the terminology used in section 2(2) was highly unlikely to have been
contemplated by the drafters of the Act in 1972 as encompassing acts taken to withdraw
from the EU, especially since the right to withdraw from the EU has only
existed for seven years. Nevertheless, it is an intriguing argument that, on
one level, actually accords more fully with the EU's own view of the EU legal
system, as a sui generis legal system. Thus, having to use the 1972 Act to
withdraw from the EU, rather than resorting to general principles of UK
constitutional law, appears more consonant with the view that the EU is a
unique legal system, requiring special measures of withdrawal. It would also be
neater in a sense, in that it would be internally consistent: the processes
under the 1972 Act would be used to commence unravelling the 1972 Act.

The second option, that of requiring the
Prime Minister to seek Parliamentary approval for triggering Article 50 is
similarly attractive, but problematic. It is attractive to require an Act of
Parliament to authorise use of Article 50 TEU because it ensures a high level
of democratic control and scrutiny will be undertaken before the UK starts the
process of withdrawing from the EU. This is fundamentally important because the
referendum result was so divisive for the country and did not show an overwhelming
desire to leave. Rather, just slightly over half of the population voting chose
to leave the EU. The referendum result is not legally binding since there is no
mention of the legal effects of the referendum in the authorising legislation
of 2015. Further, it became acutely clear after the referendum, that the
preparations for a Leave win, were virtually non-existent and that certain
statements by the Leave campaign, and indeed Remain, were, at the very least,
economical with the truth. The bigger question surrounds the post-EU
environment for the United Kingdom and this question was never put to the
electorate - what kind of relationship with the EU should the UK have?

It has been argued
that there are seven different options available to the UK for a life outside
the EU, all with vastly different outcomes. These
options range from close cooperation with the EU as an associate member,
membership of the EEA or EFTA, bilateral cooperation with the EU, a customs
union with the EU, a free trade arrangement with the EU or simple WTO
membership. Clearly, this complexity in post-EU relations was inadequately
addressed during the referendum campaign and the answer to this question was
not given when 52% of those voting answered 'leave the EU' in the referendum.
Thus, there is no definitive UK-wide answer to this question, such that the Prime
Minister cannot simply state that the express will of the people is clear.

In such circumstances, an expanded role for
the UK parliament becomes very attractive: once the settled will of the people
has been 'discovered' regarding the preferred post-Brexit choice, the Prime
Minister can trigger Article 50 TEU and then deploy negotiators to spend the
next two years securing a deal to achieve this settled will.

However desirable a new Act of Parliament
authorising the Article 50 trigger would be, this approach fatally undermines
the established process of the exercise of royal prerogative and confuses the
beginning and the end of the withdrawal process. The Article 50 TEU process
only commences the process for exiting the EU, and the UK Parliament will get
its say when the Bill authorising the repeal of the 1972 Act is introduced to
the House of Commons.

Thus, it appears that the most likely outcome
is for the royal prerogative to be used by the Prime Minister to trigger the
Article 50 TEU process. Nevertheless,
this process is hardly satisfactory. The primary concern is that the two year
limit is incredibly short and if there are seven options on the table for the
status of the UK post-EU, most of this time may be taken up with attempting to
secure the 'wrong' type of withdrawal agreement, if no clear exit strategy is
in place.

An issue related to this is the status of the
currently constituted rights of UK and EU citizens post-Brexit. This question
also highlights the unprecedented nature of the task facing the UK.

Unmaking a treaty has been only sporadically undertaken in the
history of the UK. It has to be stressed that withdrawal or denunciation of a
Treaty is often a last resort and is usually a result of other party
non-compliance or because of a material change of circumstances. Indeed, the UK
does not enter international treaties lightly and accedes to treaties in good
faith, observing the international law principle of pacta sunt servanda. Generally,
stable, democratic and internationally respected sovereign states only rarely
denounce international treaties.

Withdrawing from or denouncing a 'traditional'
treaty is a relatively simple process, utilising the royal prerogative.
International treaties commonly provide that withdrawal or denunciation can be
activated by simple notification of this intention by the member state to the
depositary state or international organisation. The treaty would then not apply
to the state concerned after a set period of time had elapsed, for example six
months or a year. Some treaties may also impose certain conditions, such as the
expiry of a certain period before withdrawal can be activated and treaties may
provide for the legal effects of the treaty subsisting for a period beyond the
withdrawal (see Article 58 ECHR). The nature of the international agreement is
also a factor pointing to the ease of withdrawal. In the case of bilateral
treaties, invariably they only encompass agreement on a narrow field of state
action, such as trade, joint construction or projects (such as the Concorde) or
financial cooperation. In the case of multilateral treaties, they predominantly
tend to be restricted to dealing with a narrow range of legal fields. Again,
removal from such a treaty only involves a narrow number of legal issues in the
domestic plane and the issues would be more directed at the international law
field.

In all of these instances, the process is
solely in the hands of the departing state. Once triggered by royal
prerogative, the domestic legal process is simply for an Act of Parliament to
be passed (assuming of course that the international treaty had been given
legal effect in the UK) extricating the UK from the treaty regime concerned.
The Act of Parliament will provide for removal from the regime. Said removal
from the treaty regime is normally straightforward, since the international
rules applicable will primarily relate to the rules between nations and will relate
to the financial costs of withdrawal, the loss of rights within the
international organisation and the removal of jurisdiction to oversee
compliance with the international regime. In these circumstances, exercise of
the royal prerogative simpliciter is absolutely appropriate: the statement to
withdraw is made under the royal prerogative, is transmitted to the depositary
state/international organisation, that organisation/state informs the other
parties of that fact and after the requisite time period has elapsed, the state
is deemed to have left, whilst Parliament, after the exercise of the royal
prerogative, gives royal assent to the domestic bill negating the legal effects
(if any) within the domestic legal plane. These examples all share one common
theme: the international organisation or depositary state plays an entirely
passive role in the withdrawal process.

The extraction of the UK from the EU is of an
altogether greater magnitude, requiring constitutional changes in the UK,
institutional changes for the EU, changes to the running costs, operation and
composition of the EU and the impact of directly effective EU law within the
UK.

This process for exiting the EU, by contrast
to traditional international law processes, is driven by the EU itself, and
must be conducted according to EU law, not general public international law. The
suprantional sui generis nature of the EU requires that the EU be actively
involved in the process for withdrawal of a Member State. Further, from a more
practical standpoint, the close cooperation, integration and enforcement
mechanisms that inhere under a supranational governance system, necessitates
that the EU institutions must play a large part in the withdrawal process, for
the decision to withdraw does not result in a simple binary result: the member
State becomes a non-member State with no legal connections. Rather, the EU
actively seeks a continuing relationship with the exiting Member State. Again,
in a traditional multilateral treaty system, the fact that a Contracting State
exits has minimal impact upon the international intergovernmental supervisory
organisation system itself: the Contracting State, by leaving, loses voting and
participation rights and the intergovernmental supervisory organisation simply
carries on without the State concerned. Further, the decision to leave a
multilateral treaty does result in a binary position: from the day after exit,
the Contracting State has no legal connection to the treaty regime (except for
the possibility for continuing liability for prior acts).

Article
50 TEU requires a withdrawal arrangement to be agreed within two years. The
sheer scale of the changes required will require massive cross cutting
legislative changes within the UK, such that it is submitted, simple triggering
of Article 50 TEU is inappropriate.

Thus, if the two alternative processes outlined
above are ill-suited to UK removal, as a matter of UK law, then can it be that
the unique characteristics of the Brexit case require modifications to the
royal prerogative system itself? Could some sort of 'enhanced' royal
prerogative/royal prerogative be required? Young has suggested
that a new constitutional convention can crystallise, requiring that in areas
of extreme high policy, it has to be shown that future planning and a clear
exit strategy has been completed and agreed by the sovereign Parliament before
the royal prerogative can be exercised. Further, it also appears reasonable
that the royal prerogative, when being used to initiate a bilateral process of
negotiation, should only be activated when the terms of reference are clearly
delimited.

Regardless of the merits and demerits of the
three options above, it is clear that the United Kingdom is in novel
constitutional waters. Whatever process is ultimately adopted to begin the
formal process of exit, for political and legal certainty, there needs to be a
road map setting out the future direction of the UK's relationship towards its
nearest neighbours on the continent of Europe. After the path to exit is made
clear, the Article 50 process should progress. To fail to do this, risks an internecine
war between the UK and EU which is no-one's long term interests.

Conclusion

The tumultuous events in the UK in the last
month have plunged the UK and the EU into turmoil. In these times
of immense uncertainty, only one thing is certain; the end of the UK's
membership of the European Union is only just beginning.

Free movement of
persons continues to be debated in the UK after the Brexit referendum and the
EEA Agreement is often referred to regarding the UK's future relationship with
the EU. This post intends to address two differences in the right to free
movement of persons in a model of association with the EU outside membership –
the EEA Agreement compared to the right to free movement of persons in the EU.

The EEA
Agreement extends the EU internal market to include three of the parties to
the European Free Trade Association (EFTA) – Norway, Iceland and Liechtenstein
– but without membership in the Union. The extension of the internal market
means, in principle, parallel rights and obligations in the area of free
movement (including the right to free movement of persons) and competition law.
Nevertheless, certain products (fish and agricultural products, see Article
8(3) EEA) and tax harmonisation are outside the scope of the Agreement.

However, there
are two differences between being subjected to the right of free movement of persons
as a Member State of the EU compared to that of being a Contracting Party to
the EEA Agreement. The first is the lack of Union citizenship in the EEA. The
second is that immigration from other non-EU countries is outside the scope of
the Agreement. Hence, free movement of persons is clearly different in the EEA
compared to the EU – although the EFTA States have signed up to be part of the
EU’s non-EU immigration rules (the Schengen open borders rules and the Dublin
rules on asylum responsibility) separately. As will be demonstrated
institutional practice (in particular the EFTA Court's case law regarding
citizens' right to free movement) has nevertheless made the implications of
these differences in the legal framework unclear.

In legal terms,
the two differences are expressed first, through the fact that there are no
corresponding provisions to the relevant EU primary law; hence Articles 20-25
TFEU regarding the creation of the concept of Union citizenship and Article 79 TFEU
on rights of non-EU citizens are not paralleled in the EEA Agreement. Second,
there are parallel differences in secondary legislation: EU laws on non-EU
citizens such as Directive
2003/86/EC on the right of family reunification and Directive
2003/109/EC on rights of long term residents have not been made part of the
annexes of the EEA Agreement. Furthermore,
the two differences were recently emphasised by the Contracting Parties in a
Joint Declaration, which was adopted when the EU’s citizens’
Directive (the main secondary legislation regarding the right to free
movement of citizens) was made part of EEA law (Decision
by the EEA Joint Committee No 158/2007).

That Decision enshrined
the citizens' Directive as part of the EEA Agreement through an amendment of Annexes
V and VIII to that agreement, with the usual adaptations such as substituting
the words 'Union citizen(s)' with the words 'national(s) of EC Member States
and EFTA states. The citizens' Directive entered into force in the EEA on 1
March 2009 and has been the subject of four EFTA Court cases; E-4/11 Clauder
(Liechtenstein), E-15/12 Wahl
(Iceland), E-26/13 Gunnarsson
(Iceland) and finally the recent case of E-28/15 Jabbi
(Norway).

Since the late
1990s the CJEU has applied the status of Union citizenship to create rights in
the field of extending territorially bound social security rights, to ensure
patient's rights to have treatment abroad paid for by domestic welfare systems,
to ensure the export of student financing as well as ensuring rights for non-EU
citizens as family members of Union citizens. All this case law has been
inspired by or legally based on the fundamental status of Union citizenship.
Hence, the construction of Union citizenship has contributed to EU law,
including EU institutional practice, having an impact on national domestic
systems of welfare and immigration. Union citizenship is part of increasing and
deepening the EU integration process. Free movement rights for individuals
detached from market objectives substantiate Union building. Citizens should
ideally move freely, and therefore, states have obligations not to create
barriers to movement.

No parallel
objective exists in the economic and market oriented scope of the EEA
Agreement. The EEA Agreement is, however, a complex legal construction where
the principles of dynamism and homogeneity with EU law have been afforded
significant weight in the institutional practice (see for a recent reference to
the substantial weight of the homogeneity objective in paragraph 60 of Jabbi). Hence, the EU/EFTA institutions
applying EEA law have significantly paralleled the aforementioned developments in
the EU legal order and included parallel rights for individuals with
corresponding obligations on states into the EEA legal order (despite the lack
of parallel provisions on EU citizenship); social security rights for the
non-economically active movers (see Cases E-5/06 ESA
v Liechtenstein, E-4/07 Porkelsson,
E-3/12 Jonsson,
E-6/12
export of child care benefits, E-26/13 Gunnarsson
and C-431/11 UK v
Council), free movement rights for patients (see Joined Cases E-11/07
and 1/08 Slinning
and Rindal), export of student benefits (see EFTA Surveillance Authority
Cases No 69199
and No 71579),
rights for family members of non-economically active EEA citizens (see Case E-4/11
Clauder and EFTA Surveillance
Authority Case No 73930
(pending)).

The EU/EFTA
institutional practice on the right to free movement of persons in the EEA
Agreement has reached its possible peak with the case of E-28/15 Jabbi. The question in the case was at
the core of evolving EEA law – a possible right to family reunification with a non-EU
citizen for a non-economically active EFTA state national who had availed
herself of free movement rights and who was in receipt of welfare
benefits. The EFTA Court's advisory opinion recognised that there are differences
in the legal framework between the free movement of persons in the EEA compared
to the EU, especially as regards EU citizenship (see paragraph 66 in particular).
The Court refers to a gap due to the revised primary law of the EU in the
Maastricht, Amsterdam, Nice and Lisbon Treaties with no corresponding changes
in the main part of the EEA Agreement. The Court also recognised the
differences by making it explicit that it has to rely on the legal sources
available as part of EEA law (and consequently that the EFTA Court cannot rely
on the same legal basis as the CJEU did in a similar case decided in 2014
(discussed here),
given that Union citizenship has not been made part of EEA law) (see paragraphs
68 referring to an 'authority included in the EEA Agreement' and 71 referring
to the citizens’ Directive being ruled out by the CJEU in the current
situation).

The principal
question in the case (answered by the EFTA Court in the affirmative) was
whether a non-economically active EEA citizen seeking family reunification with
a TCN national has rights based on EEA law when returning to his or her country
of origin. In other words, the question was whether the situation is governed
exclusively by national domestic law or whether rights may also be derived from
EEA law.

The question of
scope was challenging in the EEA context given the limitation of the citizens'
Directive: it only applies to EEA citizens who have moved to a host state (with
the exception of Chapter 2 regarding particular situations of exit visa etc,
which were of no relevance to the case). The Jabbi case concerns instead the situation of rights against the home
state, after having moved to another EEA state, and then returned. Rights
against the home state for a non-economically active Union citizen falls within
the scope of EU law through the concept of Union citizenship as enshrined in
the primary EU law articles which are not paralleled in the EEA. Through the
advisory opinion in Jabbi the EFTA Court took yet another step to ensure
parallel rights to free movement of persons in the EEA as compared to the EU,
transposing to the EEA legal order the relevant case law of the CJEU (discussed
here), despite those differences in the EU and EEA legal frameworks.

However, the
Union citizenship case law of the CJEU includes situations where no similar
authority exists in the EEA such as the Ruiz
Zambrano case law (see case C-34/09), where rights accrue to EU
citizens solely by virtue of their EU citizenship, rather than because of
movement between EEA members. In addition, the Union citizenship case law
includes elements of mutual financial solidarity legitimating EU law having an
impact on national welfare systems, see cases on students' rights against their
home state in cases like C-359/13 Martens,
C-220/12 Thiele and C-585/11 Prinz and Seeberger (discussed here).
This aspect of mutual solidarity was also part of the reasoning in the early
case law establishing Union citizenship as a fundamental status; see i.a. cases
like C-184/99 Grzelczyk
and C-209/03 Bidar
regarding students' right to welfare benefits in the host state. Decisional
practice from the EFTA Surveillance Authority indicates parallel rights for
students in the EEA. A similar understanding might be hinted at from the EFTA
Court in Jabbi in paragraph 51. However,
what is striking in Jabbi is a
renewed attention by the EFTA Court to limit the impact of its decision
regarding national welfare systems and to be explicit about differences in the
two legal orders.

In paragraphs
78 and 82 of the Advisory opinion the EFTA Court refers to the citizens'
Directive Article 7(1)(b) to apply by analogy to the situation of a returning
own national. The Court makes this reference stating that a derived right
depends on the conditions in this Article to be fulfilled (in addition to other
conditions familiar from CJEU Union citizenship case law regarding 'genuine
stay' and length of stay for the Union citizen to find him/herself in a
cross-border situation). One possible interpretation of the statements made by
the EFTA Court in these paragraphs is the possibility to maintain national
requirements for family reunification in terms of financial means available for
the sponsor. This understanding of the opinion is based on the Court repeated
references to family reunification in the home state to be conditioned upon the
requirements in Article 7(1)(b) to be fulfilled also in the home state upon
return (see paragraphs 80 and 82).

Given this
interpretation of the advisory opinion the extent to which the rights of Mr
Jabbi to fall within the scope of EEA law to actually be of any concrete assistance
is questionable. The right to family reunification for Mr Jabbi is ultimately
conditioned on the sponsor fulfilling the criteria of sufficient means and
medical insurance as enshrined in Article 7(1)(b) of the Citizens Directive
meant to ensure that no unreasonable burden is placed on the national welfare
systems. In this, the EFTA Court seems to have respected national conditions in
Norwegian domestic immigration law where family reunification is conditioned on
certain requirements regarding sufficient means. Another consequence of this
reading of the advisory opinion is the extent to which both static citizens and
returning non-economically active citizens would be treated alike in domestic
legislation.

The Union
citizenship case law of the CJEU has always been directed towards efficient
rights for the Union citizen and aiming at eliminating differences between the
economically active and the non-economically active. Having said this more generally the recent restrictive
case law from the CJEU on host state obligations based on Union citizenship in
cases like C-333/13 Dano,
C-67/14 Alimanovic
and the recent
case on restricting the export of child care benefits from the UK, C-308/14
should also be mentioned. It may be argued that the EFTA Court's opinion in Jabbi is in line with this recent case
law when the EFTA Court demonstrates deference to its decisions having an impact
on domestic welfare systems. The spirit of Union citizenship case law and in
particular the home state obligations enshrined in the recent CJEU case law on
students' rights is, however, not apparent in the Jabbi case. On the contrary the EFTA Court seems more reluctant and
albeit focusing on the aim of homogeneity to also for the first time pointing
at possible differences occurring between the two legal orders due to
differences in the legal framework.

The
institutional practice of EEA law from EU/EFTA institutions seems to
consistently aim at paralleling free movement rights for persons in the EEA as
compared to the EU. The general point to make here is nevertheless that the
provisions on free movement rights for persons in the EEA Agreement are
substantively different to their EU counterparts. This difference was pointed
to in the Wahl case (paragraph 75)
but the Jabbi case is the first time this
difference is elaborated on by the EFTA Court (in particular paragraph 62). In the EEA, the free movement of persons include
the free movement rights for the economically active to facilitate the economic
aim of the internal market. However, outside the economically active, rights
are limited and there is neither the status of Union citizenship nor the
overarching aim of an 'ever closer Union'. The rights of non-EU citizens are in
principle outside the scope of the Agreement. Furthermore, institutional
practice in the EEA is subject to the decisions made by the Contracting Parties
in the political organ of the EEA Joint Committee. Free movement rights for persons
are not the same in the EEA compared to in the EU. Whether they are
sufficiently different to be of interest to the UK and the EU for future
association remains to be seen.